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View from what would have been a housesite in Hartland had a conservation easement not been amended (see |
VLT Proposed Legislation to Clarify the Rules on Amending Conservation Easements
When a landowner and a land trust enter into an agreement that places a permanent conservation easement on the land, their intention is that the restrictions in the easement will last forever. But what happens when circumstances occur that the parties could not possibly have anticipated when the land was originally conserved?
What if a Farm had been Conserved in 1811?
You can get an idea of the problem by imagining how a conservation easement might have been written for a Vermont farm in 1811. How many changes in agricultural practices, technological innovations, scientific knowledge, environmental regulation, etc. have occurred in the intervening years?
It seems quite likely that had they foreseen the changes, both the owner and the land trust would written the easement differently, so that the farmer would be able to respond to the changes in agriculture and so that the easement would incorporate the latest thinking on resource protection.
Why We are Suggesting Legislation
There has been a lack of clarity about the law governing easement amendments in most states, including Vermont. In response to this issue, we have proposed legislation that will clarify the rules around conservation easement amendments and establish third-party review for major amendments.
The fear that surrounds any discussion about easement amendments is that the intent of the landowner who signed the easement might be undone. By requiring a third-party approval of all major amendments, the proposed legislation is designed to prevent that. But there are also times when an amendment will enhance the intentions of the original landowner.
How Would an Amendment be Reviewed Under the Proposed Legislation
An example of an amendment that would require review occurred Hartland, VT. A landowner donated a conservation easement on a beautiful 227-acre hill farm in the mid-1990s. Unfortunately, there was a five-acre undeveloped housesite, owned by somebody else, which was located in the middle of the farm's best (and highly visible) agricultural field.
Several years later, a new person purchased the farm and the housesite. The new owner proposed relinquishing the rights to build on the housesite and incorporating the land into the existing conservation easement. In return, he wanted VLT to amend the easement, so that he build a guesthouse in the woods behind the main house, where it would not be visible from the road.
At the time, we concluded that the swap represented a clear "win" for both the land's agricultural use and its scenic beauty, and so we approved the amendment.
Under the proposed legislation, this swap would require a third-party approval by an administrative panel, because the amendment allows a new use not contemplated in the original easement (i.e. the guesthouse).
The review would be conducted by an Easement Amendment Panel established within the existing Vermont Natural Resources Board. The public would be notified of the proposed amendment, and would have an opportunity to express their opinions, for or against, the change.
Minor amendments, which merely add more conserved land, enhance natural resource protections, eliminate reserved development rights, correct clerical errors, etc., without changing the intent of the easement, would not have to go through the review process.
Actual case studies of changed circumstances that led to conservation easement amendments in Vermont can be found in a paper written by Darby Bradley, VLT's former president: Amending Perpetual Conservation Easements, Confronting the Dilemmas of Change: A Practitioner's View.
Next Steps
During the drafting process, we consulted with the Attorney General's office, many State agencies and boards, other land trusts and other stakeholders, such as the Vermont League of Cities and Towns, Vermont Bar Association, and Vermont Farm Bureau. We also contacted attorneys who are prominent in the conservation and conservation tax field nationally to ensure that the legislation is consistent with IRS requirements on land trusts and conservation transactions.
Many of their comments and suggestions have been incorporated into the bill. The principal change from earlier drafts is that amendments to easements which are co-held by a State agency or board and a "qualified organization" (i.e., a non-profit land trust) will be exempt from the panel's review process.
Many farm conservation easements are co-held by land trusts, Vermont Housing and Conservation Board and the Vermont Agency of Agriculture, Food and Markets. The rationale for the exemption is that, as a practical matter, VHCB and VAAFM are already scrutinizing amendments proposed by farmers and land trusts, and adding a second third-party review would be unnecessary and cause further delay and expense.
Representatives Maxine Grad, Will Stevens and Norm McAllister have now introduced the amendment legislation as H.553. The bill has been referred to the House Judiciary Committee, which held its first hearing on the proposal on January 19. A summary of H.553 is also available.
Both the Vermont Natural Resources Board and the Vermont Housing and Conservation Board have endorsed the general thrust of the bill.
It is not clear how long it will take the House to act on the bill, or whether there will be sufficient time to get the legislation through the Senate this year. We will post periodic updates on this site. Readers can also check on the bill's status through the Vermont Legislature's website.
If you have questions or comments, please send them to This e-mail address is being protected from spambots. You need JavaScript enabled to view it , 8 Bailey Avenue, Montpelier, VT 05602.
